Where can a fired employee file suit for discrimination?
Sometimes where a suit is filed is as important as the evidence presented. A discrimination claim, for example, will find a more sympathetic ear among jurors who tend to sympathize with victims of discrimination. And conventional wisdom says white jurors more easily identify with white litigants while black jurors more readily identify with black litigants. Fifth Third Bank recognized that; and after two black Wayne County employees were fired and filed suit in Wayne County where they were fired, Fifth Third sought to move their cases from Wayne County to Oakland County "where the decision to terminate the employees was made in the regional office." The trial judges refused to transfer venue, but a two-judge majority of the Court of Appeals obliged on appeal.
In Brightwell v. Fifth Third Bank of Michigan, the three judges assigned to decide the case clearly struggled with the decision over proper venue: they wrote three separate opinions and responded within the opinions to the arguments of the other judges. Their struggle is understandable, given some of the confusion created by recent decisions of the Michigan Supreme Court during the Engler Majority era.
An emphasis has been placed on the "location of injury" in venue statutes and decisions, in order to limit the injury victim's freedom to choose the venue for litigation. Where, in the past, the victim could choose to bring a negligence action in any county where negligent decisions were made, an over-arching focus on the actual site of the injury or damages suffered as the exclusive location for suit has developed since.
The language of the Elliott-Larsen Civil Rights Act (CRA) lends itself to this controversy, because it differs slightly from the venue language broadly applicable to other injuries. The CRA requires that suit be brought in the County "where the alleged violation occurred." Two of the judges in Brightwell concluded that this language requires a CRA discrimination claim to be brought in the County "where the [allegedly discriminatory] decision was made." In these cases, that would be the [whiter, more affluent] Oakland County where the Fifth Third regional office is located and where Fifth Third expected to find a more sympathetic jury.
Judge Gleicher, however, noted that an inchoate intent to discriminate cannot constitute a "violation" until it is acted upon--and Fifth Third's allegedly discriminatory firings were admittedly carried out in [blacker, more likely to be vigilant about discrimination] Wayne County. On that basis, Judge Gleicher would have upheld the decisions of the Wayne County judges who concluded that the alleged violations in this case "occurred in Wayne County" when the two employees were actually fired there.